from the sounds-familiar dept

In a story that sounds mighty similar to the Andrew "weev" Aurenheimer situation, two reporters from the Scripps News service have been told that they may be hit with Computer Fraud and Abuse Act (CFAA) charges after a Google search they did turned up personal data on 170,000 customers that two telcos left exposed. At issue are low-income customers of YourTel and TerraCom, who provide service for the FCC's Lifeline, a phone service for people who are enrolled in state or federal assistance programs. Apparently, the real issue was a company called Vcare, which the two telcos outsourced certain services to. The Scripps reporters noted that they did nothing more than a Google search:

The unprotected TerraCom and YourTel records came to light through the simplest of tools: a reporter’s Google search of TerraCom.

The records include 44,000 application or certification forms and 127,000 supporting documents or “proof” files, such as scans or photos of food-stamp cards, driver’s licenses, tax records, U.S. and foreign passports, pay stubs and parole letters. Taken together, the records expose residents of at least 26 states.

The application records, drawn from 18 of those states and generally dated from last September through November, list potential customers’ names, signatures, birth dates, home addresses and partial or full Social Security numbers. The proof files, from last September through April, include residents of at least eight remaining states.

Of course, rather than be thankful to the reporters for letting them know about a huge security lapse, or be apologetic for revealing all sorts of key data on their customers, they decided to sue.

However, Vcare and the two telecom companies assert that the reporters "hacked" their way into the data using "automated" methods to access the data. And what was this malicious hacking tool that penetrated the security of Vcare's servers? In a letter sent to Scripps News by Jonathan D. Lee, counsel for both of the cell carriers, Lee said that Vcare's research had shown that the reporters were "using the 'Wget' program to search for and download the Companies' confidential data." GNU Wget is a free and open source tool used for batch downloads over HTTP and FTP. Lee claimed Vcare's investigation found the files were bulk-downloaded via two Scripps IP addresses.

I'm not sure how anyone could claim that the mere use of Wget constitutes a form of hacking, even under the extremely loose interpretations of the CFAA. However, as mentioned, the story does have similarities to the weev case -- except this time we're talking about reporters for a well known news service, rather than someone with a reputation as an internet troll. Hopefully, if the telcos do decide to actually file a lawsuit, it gets laughed out of court.

from the happens-once-a-month dept

We hear from copyright system supporters that bogus copyright takedowns are rare and we only highlight the "exceptions." Of course, it seems like there are an awful lot of these exceptions. The latest is that with the massive success of last night's Mars landing of the Curiosity Rover, NASA posted the video to YouTube for those who didn't watching the thrilling, suspenseful landing live... except, if you checked out NASA's own YouTube page a few hours later, you got this:

It's back now, but as Vice's Motherboard blog explains, this kind of thing happens all the time. They spoke with Bob Jacobs, NASA’s Deputy Associate Administrator for Communications, who said that this happens about once a month, and almost always happens with NASA's popular videos.

“We spend too much time going through the administrative process to clear videos slapped with needless copyright claims,” says NASA’s Bob Jacobs. “YouTube seems to be missing a ‘common sense’ button to its processes, especially when it involves public domain material paid for by the American taxpayer.”

Jacobs is quite reasonably annoyed at the lack of consequences for these bogus takedowns:

“There seems to be few consequences for companies that engage in such activities, which often include legitimate news organizations. We do agree that people who make false copyright claims against our material should be held accountable, regardless of their automated systems.”

What's amazing here is that Scripps is a repeat offender with NASA. Back in April, people noticed that it had forced the removal of NASA's (again, public domain) footage of the Boeing 747 that carried the space shuttle Discovery to the Smithsonian (its "final journey"). But, of course, there aren't many (or even any) serious consequences for these kinds of mistakes. While it's not clear what happened, it seems likely that Scripps replayed the footage itself somewhere, and via some semi-automated process uploaded it to YouTube's ContentID, in which it claimed copyright on all its works. But, of course, it was actually broadcasting public domain video from NASA. Unfortunately, YouTube can't recognize that Scripps is the latecomer here, rebroadcasting others' public domain material, and thus took down the material, only to have it corrected later.

Given that Scripps is now a repeat offender, it seems that perhaps YouTube should cut it off from automatically censoring others' videos.

Oh, and if you want to know one of the reasons we're so concerned about a possible broadcast treaty (which the US government is now supporting), it's because it actually would make these kinds of claims quasi-legal, in that broadcasters who broadcast public domain material could then claim a separate "broadcast right" over that footage. Even without that, we see operations like Scripps abusing the law. Do we really want to expand that power?

Now, since the video is back up, here's the actual (public domain) footage, in case you missed it (and if you did miss it, you should watch it, as it really is incredible):

from the hot-news-loss dept

"Hot news" was pretty much dead a few years ago. The court-created doctrine, which resulted in a weird quasi-intellectual property on factual information about a century ago, hadn't been used for years and many people had assumed that it was pretty much gone. However, old legal doctrines die hard and, a few years back, some Wall Street firms sought to revive it, claiming that the website theFlyOnTheWall.com violated their "hot news" rights by accurately reporting on how those Wall Street firms were rating stocks. That's factual information and not protected by copyright, but the firms claimed it undermined their business models via hot news... and the lower court agreed, issuing an injunction.

Thankfully, an appeals court has dumped all of that, claiming that hot news is preempted by federal copyright law and that there's nothing wrong with reporting on factual information. The court mainly relies on the famous NBA v. Motorola case, which found that basketball scores and stats were facts and not protected by copyright or hot news. Using the same rules, the court finds that copyright wipes out any "hot news" in this case as well.

We conclude that applying NBA and copyright preemption
principles to the facts of this case, the Firms' claim for "hot
news" misappropriation fails because it is preempted by the
Copyright Act. First, the Firms' reports culminating with the
Recommendations satisfy the "subject matter" requirement because
they are all works "of a type covered by section 102," i.e.,
"original works of authorship fixed in a... tangible medium of
expression." 17 U.S.C. § 102. As discussed above, it is not
determinative for the Copyright Act preemption analysis that the
facts of the Recommendations themselves are not copyrightable.
See NBA, 105 F.3d at 850. Second, the reports together with the
Recommendations fulfill the "general scope" requirement because
the rights "may be abridged by an act which, in and of itself,
would infringe one of the exclusive rights' provided by federal
copyright law," Altai, Inc., 982 F.2d at 716 (citing Harper &
Row, 723 F.2d at 200), i.e., "acts of reproduction, performance,
distribution or display," id. (internal quotation marks omitted).

Third and finally, the Firms' claim is not a so-called
INS-type non-preempted claim because Fly is not, under NBA's
analysis, "free-riding." It is collecting, collating and
disseminating factual information -- the facts that Firms and
others in the securities business have made recommendations with
respect to the value of and the wisdom of purchasing or selling
securities -- and attributing the information to its source. The
Firms are making the news; Fly, despite the Firms' understandable
desire to protect their business model, is breaking it. As the
INS Court explained, long before it would have occurred to the
Court to cite the First Amendment for the proposition:

[T]he news element -- the information
respecting current events contained in the
literary production -- is not the creation of
the writer, but is a report of matters that
ordinarily are publici juris; it is the
history of the day. It is not to be supposed
that the framers of the Constitution, when
they empowered Congress "to promote the
progress of science and useful arts, by
securing for limited times to authors and
inventors the exclusive right to their
respective writings and discoveries" (Const.,
Art I, § 8, par. 8), intended to confer upon
one who might happen to be the first to
report a historic event the exclusive right
for any period to spread the knowledge of it.

The court also distinguishes the classic "hot news" case (INS) by noting that in that case, the competing firm was taking AP news, rewriting it, and pretending it was its own. That's not what's going on here, where ratings are simply being aggregated.

This is an excellent ruling, though I doubt we've seen the end of "hot news" yet. There may still be appeals, and there are a few other such hot news cases out there. But it's nice to see the judges toss this one out.

from the permission-nation dept

There are a bunch of different newsreader type apps out there, and for years there have been all sorts of apps that let you aggregate content into personal collections. A new one, which recently hit the market for iPads, is called Zite and, apparently, it's getting pretty good reviews. Basically, it can look at what you follow on things like Twitter and Google Reader and formats an algorithmically chosen aggregation of that content to look something like a magazine. If you're familiar with Flipboard, it's somewhat similar, but the implementation is a bit different. I remember when Flipboard came out, there were copyright questions concerning how it scraped various websites.

However, for whatever reason, this new service Zite has really set off pretty much everyone in the traditional newspaper business. A list of who's who in the newspaper/magazine world, including the Associated Press, the Washington Post, Dow Jones, Scripps, Gannett, McClatchy, Time and even National Geogrpahic, all teamed up to send a nastygram (embedded below) that effectively says "hey, we're all for innovation, but you can't innovate without first paying us."

Now, to be clear, technically these newspapers may have a point concerning the fact that Zite displays their content. But if you start to go down that path, you suddenly realize that so does a browser. Zite is really just a form of a browser, that tries to make their content more useful. Again, some may point out that Zite strips some ads from publications, but, again, so do many browsers that have ad blocking extensions installed. When viewed that way, how is Zite really anything other than a specialized browser? If they're claiming that's infringing, then is it really that different from claiming that other browsers/aggregating tools are infringing.

And, honestly, if creating an app that makes it easier to read your content is a threat to your business, you're doing business wrong.

I will say I'm a bit surprised to see the NY Times missing from the list of angry publications, since they've gotten upset about similar apps in the past, but really, this just seems like another example of publications thinking that anyone making their content more readable has to first get permission. If someone wants to make Techdirt content more readable, please go right ahead.

from the they-will-regret-this dept

Yesterday we wrote about Google and Twitter's amicus brief in the infamous FlyOnTheWall hot news case, and the folks over at the Associated Press were kind enough to send over a link to the amicus brief from a huge coalition of newspapers. Basically, every big US newspaper or newspaper organization signed on to this one, including the Associated Press, AFP, the NY Times, the Washington Post, Gannett, McClatchy, Belo, Scripps, Time, and the Newspaper Association of America (just to catch everyone else). Considering that the AP has been leading the charge to bring back hot news, you can probably guess where this one is going:

The short summary? "We don't care about TheFlyOnTheWall or Barclays or this specific case, but we're scared to death that you might make a ruling that says the hot news doctrine should go away."

I'm still sort of amazed that any serious news organization supports the hot news doctrine, because it's almost guaranteed to come back and bite them if it is regularly used again. All of the newspapers above rely on rewriting news from other publications to some extent, whether they admit it or not. If they really support this, they're going to run into trouble themselves, even if they're apparently unwilling to admit it. It's incredibly short-sighted.

Also weird is the claim that these newspapers "rely" on hot news today. They don't. Sure, the hot news doctrine has technically been around for about a century, but it's barely been used at all in the last few decades. It was, for all intents and purposes, a dead doctrine that many considered not worth keeping around (pdf). To claim that these organizations have relied on the hot news doctrine is ridiculous, because it's barely been showing up in court until recently.

Either way, it looks like lots of parties who are concerned about "hot news" have realized that TheFlyOnTheWall case has become ground zero for whether or not "hot news" is actually allowed.